United States v. Veliz, Veliz Novack
2015 U.S. App. LEXIS 14518
| 2d Cir. | 2015Background
- Veliz solicited associates to murder a potential witness to prevent disclosure to authorities in Ben and Bernice Novack murders.
- Garcia, an initial assailant, was killed; Veliz later planned another attack on Ben Novack.
- Authorities investigated the murders across states; Veliz sought to hush Garcia to prevent cooperation.
- Garcia pleaded guilty and testified; Veliz and Novack were indicted in SDNY on RICO and related charges.
- Jury found Veliz guilty of two counts of witness tampering under 18 U.S.C. § 1512(b)(3) and related predicate acts; Veliz was sentenced to life.
- The present opinion addresses Veliz’s challenges to the witness-tampering convictions, including sufficiency of the evidence, federal nexus, and jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether solicitation to murder constitutes § 1512(b)(3) corrupt persuasion | Veliz argues Solicitation to murder is not intimidation, threat, or corrupt persuasion. | Veliz contends solicitation does not fit § 1512(b)(3) as written. | Yes; solicitation to murder fits corrupt persuasion under § 1512(b)(3). |
| Whether the evidence shows a reasonable likelihood a federal communication would occur | Government argues there was sufficient nexus because offenses were interstate and involved federal investigation. | Veliz argues no reasonable likelihood of federal contact at the time. | Sufficient; evidence showed a reasonable likelihood of federal communications, satisfying the federal nexus. |
| Whether the district court's instruction including 'physical force' was plain error | Government concedes the term was added but argues surplusage. | Veliz argues the instruction altered the statute's elements. | Plain-error review; no reversible impact on verdict; instruction did not affect outcome. |
| Whether the 'physical force' language constructively amended the indictment | Veliz argues the charge broadened the indictment. | Government contends conduct remained within the Indictment’s scope. | Not a constructive amendment; Indictment tracked the charged conduct and verdict complied. |
Key Cases Cited
- United States v. England, 507 F.3d 581 (7th Cir. 2007) (definition of threat in § 1512(b)(3) debated)
- Fowler v. United States, 131 S. Ct. 2045 (S. Ct. 2011) (reasonable likelihood nexus in § 1512(b)(3))
- Arthur Andersen LLP v. United States, 544 U.S. 696 (U.S. 2005) (corruptly standard; meaning of 'corrupt' in § 1512(b))
- United States v. Gotti, 459 F.3d 296 (2d Cir. 2006) (corrupt persuasion and related conduct under § 1512(b))
- United States v. Thompson, 76 F.3d 452 (2d Cir. 1996) (definition of 'corrupt persuasion')